Tag Archives: Governor Paterson

An Analysis of Leandra’s Law: Are Mandatory Alcohol Ignition Interlocks an Effective Way to Curtail Drunken Driving?

By Stephanie Goutos, Albany Government Law Review

I. Introduction

On October 11, 2009, an intoxicated Carmen Huertas got into her vehicle and began to drive seven young children to a slumber party.[1]  Manhattan District Attorney Robert Morgenthau would later report that Ms. Huertas had “brushed off warnings that she was too drunk to drive,” [2] and authorities stated she was playing a guessing game with the passengers, asking them to raise their hands if they thought they would make it home without crashing.[3]  Ms. Huertas subsequently lost control of the vehicle, which swerved off the road and flipped over on the Henry Hudson Parkway.[4]  Huertas’s blood alcohol limit was tested at the scene of the accident and reported to be above 0.13 percent, surpassing the legal limit of 0.08.[5]  One of the passengers in the car was eleven year old Leandra Rosado, who was thrown from the vehicle as a result of the accident, and did not survive.[6] Continue reading

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Filed under Criminal Law, Health Law, Municipal Law, Prosecution, Vehicle and Traffic Law

Taking a Closer Look at New York’s Family Health Care Decisions Act

Alicia M. Dodge, Albany Government Law Review Member

I.  Introduction

On March 16, 2010, the former New York State Governor Paterson signed into law New York’s Family Health Care Decisions Act (FHCDA), effective June 1, 2010.[1]  Through the enactment of the FHCDA, New York became the forty-ninth state to pass a “surrogate decision-making statute.”[2]  The FHCDA sets forth a list of persons who are deemed authorized to make health care decisions, including the decision to terminate life support for a patient without a health care proxy, who now lacks the capacity to make health care decisions.[3]  Prior to the enactment of the FHCDA, New York State law regarding end-of-life decision-making was well-established, and had been relatively uniform for the past twenty-five years.[4]  With the passage of the FHCDA, the precedent was greatly changed.

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Filed under Constitutional Law, Elder Law, Health Law, Legal History

Taking the Fight Against Cyber-Bullies Outside The School House Gate

Michael Telfer, Editing Chair, Albany Government Law Review Member

With the widespread use of the Internet in the last decade and the creation of websites such as Facebook and YouTube, the ability for people to connect with one another across the globe and with people they have lost touch with has been enthusiastically welcomed.  With the great benefits that new technology brings, also comes the ability for people to use it to the detriment of others.

Bullying has existed “as long as schools have,” but today bullying is no longer confined to the school house gates or even prevented at one’s front door, as it can “follow students to their rooms . . . their cell phones[,] or online.”[1] Through cyber-bullying, bullies can now “harass, threaten or intimidate others” by “e-mail, instant messaging, blogs, chat rooms, pagers, cell phones, and gaming systems.”[2] Specifically, bullies engage in cyber-bullying by videotaping their peers with their cell phones and posting embarrassing videos online through YouTube, creating fake Facebook profiles to steal the identify of other students,[3] and posting embarrassing comments on Facebook to humiliate other students.[4] Reports of students who have been victims of cyber-bullying have become nationwide news stories, such as the suicide of a freshman at Rutgers University in New Jersey who “jumped to his death . . . after his dormitory roommate and another student posted a video of sexual encounters he had with another man online.”[5]

As has been addressed in a previous Fireplace article, the issue of whether school districts can punish students for cyber-bullying when the student’s right to free speech is implicated is not uniformly defined.[6] Due to the fact that these incidents exist off of school grounds, the ability for schools to take action against cyber-bullies is limited because action taken by a school district can only be justified if the student’s online speech “materially disrupts class work or involves substantial disorder o[f] the rights of others.”[7] The uncertainty of the state of the law is not helped by the fact that the Supreme Court has “not addressed online student speech.”[8] The ability of schools to combat cyber-bullying has been tested in at least one case in California where a parent had his child’s suspension, due to the posting of a video on YouTube, overturned when the court found the disruption to the school caused by the video posting was “only minimal.”[9]

Since cyber-bullying usually impacts one student’s emotional well being and does not affect the larger school environment, students may be unable to rely on their school to protect them if cyber-bullying happens outside of school, which in most cases it does.   The question this article seeks to answer is whether victims of cyber-bullying have legal remedies through either criminal or civil laws of New York.

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Filed under Criminal Law, Education Law, Prosecution

New York Power of Attorney: Will Recent Amendments Reduce the Risks of Elder Abuse and Fraud?

Amanda Cluff, Senior Editor, Albany Government Law Review Member

I. Background

One of the most prevalent concerns in both elder and healthcare law is the abuse of rights bestowed upon a durable power of attorney.[1] Numerous stories circulate daily regarding elderly persons who have been financially manipulated by individuals designated to this important role.  A power of attorney is defined as “a legal document through which a principal authorizes an agent [also known as an attorney in fact] to act on the principal’s behalf.”[2] This power usually terminates once the principal—the person who authorizes the power to an agent—becomes mentally incapacitated, or otherwise unable to exert decision-making abilities.[3]

However, when a durable power of attorney is created, the power of attorney continues to remain effective, even after such incapacity occurs.[4] This sort of power can be beneficial in several respects.  First, the durable power of attorney can replace an unfamiliar court-appointed guardian or conservator.[5] In addition, those who are given a durable power of attorney are able to make both personal and property decisions in the best interests of the principal, who lacks capacity to do so.[6] However, the danger of a durable power of attorney is also what makes it beneficial—the durable power of attorney is given virtually unconstrained and very broad authority to handle the principal’s financial affairs.[7] Consequently, this is a power that is difficult to monitor and, therefore, may be subject to various forms of abusive or fraudulent behavior by the agent.

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Filed under Elder Law, Health Law